Evading Review: The Administration’s Muslim Ban Arguments

The Trump Administration’s consolidated Muslim Ban cases, Trump v. IRAP and Trump v. Hawaii, were set for oral arguments today, October 10. However, the president released a Proclamation late last month to replace the challenged Executive Order, prompting the Supreme Court to remove the case from the argument calendar and request briefs on October 5 detailing whether litigation surrounding the now overridden and expired Executive Order is moot and thus should be denied further consideration.

The Government’s filing asserted that this case reaches the very definition of moot, arguing that the plaintiffs are asking the Court to address an issue of no practical importance by litigating an expired law. Further, the new Proclamation differs in substance and cannot be considered a mere continuation of the previous Executive Order. The Government writes, “If respondents (or anyone else) believes the Proclamation violates their rights, they can file new challenges...”

This simple and strict view of mootness is an attractive argument, and will allow the conservative members of the bench the rhetorical ammunition needed to side with the Government in revoking certiorari from the case entirely. This would avoid a substantive Constitutional assessment of the Administration’s Muslim Ban, requiring a new round of litigation to once again reach the Court.

Both filings from the ACLU and the State of Hawaii focus on the persuasive argument that the Government voluntarily created conditions for mootness, an exception in the case law. They argue that the Government “chose not to seek expedited merits review that could have been completed before the 90-day ban expired,” “chose to issue a proclamation just two weeks before oral argument,” and “reinstated effectively the same conduct in a new form.” The plaintiffs clearly felt this was the best argument for the Court, as it is detailed extensively in both filings.

There is another exception to mootness that received little attention from the plaintiffs, however. Legal questions which are capable of repetition but are brief enough to be considered moot by the time they reach the Court are not able to evade judicial review. As the Government notes, this exception applies “where ‘the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,’ and ‘there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.’” However, in reality the Proclamation is substantially the same policy as the previous Executive Order, showing that a vast majority of the impacted parties will indeed be subject to the same actions. Indeed, this exception brings to the fore one of most important policy aspects of this case.

The Proclamation itself allows the Government to add and remove countries from the banned list at will without external review, and further allows for the granting of individual waivers to the travel ban. Based on habitual Administration rhetoric, there is no reason to believe Trump will not add additional Muslim countries to the list, such as Turkey. Importantly, these flexible policies allow the Government to grant exceptions to any potential litigant’s family or home country in an effort to avoid standing and claim mootness. In fact, the Government showed a willingness to use such a tactic in claiming mootness in Thursday’s filing, arguing, “...the claims of the only two individual respondents whom the courts of appeals found to have standing became moot wholly apart from the Order’s expiration when their relatives received visas.”

If the Supreme Court sides with the Government in ruling existing Muslim Ban challenges moot, the Administration will continue to impose a Constitutionally dubious and unchallenged travel ban on any individual from the specified countries and classes who is not able or willing to file suit against the Government. More broadly, if the Court rules that the 90-day Muslim Ban can evade substantive constitutional review, the precedent is set that this, or any future, administration is free to violate the Constitution so long as it is done on a temporary basis.

This piece was originally published on the American Constitution Society's blog.